Category Archives: maritime personal injury law

$400,000 Judgment for Seaman’s Pre-Death Fear and Conscious Pain and Suffering Affirmed on Appeal

In McBride v. Estis Well Service, L.L.C., 2017 WL 1321979 (5th Cir. Apr. 10, 2017), Sky Sonnier, a crewman on a barge supporting a truck-mounted drilling rig operating in Louisiana navigable waters, was killed when the rig and truck toppled over, pinning him between the derrick and mud tank.  The Fifth Circuit Court of Appeals affirmed the district judge’s finding that Sonnier’s survivors were entitled to recover $400,000 in damages for the fear he experienced trying to avoid the impact and the few minutes of conscious pain and suffering he endured before he expired.  The appeals court wrote:

“As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible.”

The appellate court noted that the Jones Act enables a plaintiff to recover damages for pre-death pain and suffering, and that “[c]ompensable pain and suffering includes a victim’s ’emotional injury caused by fear of physical injury to himself.'”  For a plaintiff to recover damages for a decedent’s post-injury pain and suffering, “he ‘must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.'”

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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.

If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

Court Finds Harbor Towboat Deckhand Work May Well be a Two-Man Job

In Keeney v. Ingram Barge Company, 2016 WL 1660398 (M.D. Tenn. Apr. 27, 2016), a federal district judge in Nashville denied Ingram Barge Company’s motion to dismiss the Jones Act negligence and general maritime law unseaworthiness claims in the lawsuit brought by Chase Keeney, an experienced deckhand aboard its harbor towboat, the M/V WILLARD HAMMOND.  Keeney claimed he had seriously injured his back, and had to undergo back surgery, because he was forced to work alone while building tow, specifically carrying ratchets and jerking wires.

Keeney worked the 12-hour day shift on Ingram’s harbor boat.  He conceded there was nothing wrong with the barge on which he was working, the towboat itself, or any of the wires or ratchets with which he was required to work.  Rather, Keeney claimed Ingram was at fault because he was forced to perform the heavy manual labor of a deckhand unassisted, because the other deckhand on his watch often would not help him, the company knew this, but did nothing about it.

A 35-foot barge wire similar to what Ingram deckhand Chase Keeney was required to carry and "jerk" singlehandedly.

A 35-foot, 100-120 pound, barge wire similar to what deckhand Chase Keeney was required to carry and “jerk” single-handedly.

Keeney’s claims were supported by an expert, Donald J. Green, who opined “the cause of this accident was negligence on the part of the defendants, Ingram Barge Company, for failure to provide Mr. Chase Keeney a safe workplace free from hazards. Reportedly, Mr. Keeney was required to perform repetitive heavy lifting and jerking ratchets to take out slack in ‘laying a wire’ without assistance. These are functions that are typically performed by two persons working together when making tow or securing barges in a tow. Mr. Keeney repeatedly handled heavy rigging wires and ratchets without sufficient assistance. Had another deckhand been available to help Mr. Keeney it is likely that he, Mr. Keeney, would not have had to repetitively strain laying wires making up tows, and it is more likely than not that this incident could have been avoided.”  Green added, “Ingram Barge Company failed to provide proper supervision or instruction to Mr. Keeney regarding safe procedures for transferring rigging wires from barges to tow boats and other barges” and “[r]equiring or allowing Mr. Keeney to work alone deploying or laying wires without assistance more than likely caused his injuries.”

Keeney testified at his deposition that “I was doing the job of two men by myself a lot of the times where it takes two people to pull up a wire and strap it in, I was doing it all by myself.”

The Court found that while the wire and ratchet work Keeney was performing can be done by one man, “it does appear that, if not mandated, it was at least preferable to have two men laying wire.” The Court also found it significant that Keeney had testified at deposition that before his accident he had reported to the captain of his towboat the fact his fellow deckhand, whom Ingram ultimately terminated due to his work habits, was routinely not helping him.

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers and their families.  If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.  While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider taking cases anywhere in the U.S.

Texas Court Upholds $8.5 Million Verdict for Injured Offshore Rig Mechanic, Holds Trial Judge Was Correct to Keep Out of Trial Unfair Surveillance Video

In Diamond Offshore Servs. Ltd. v. Williams, 2015 WL 4480577 (Tex. App. — Houston [1st. Dist.] July 21, 2015), Willie David Williams sued Diamond Offshore for negligence under the Jones Act and unseaworthiness under the general maritime law after he seriously injured his back repairing equipment aboard an offshore oil rig owned and operated by Diamond Offshore.  The trial judge entered judgment on the jury’s verdict, after credits and offsets had been applied, delivering to Williams approximately $8.5 million in compensatory damages and $235,381 in pre- and post-judgment interest.  Diamond Offshore appealed the trial court’s judgment, claiming the trial judge made numerous legal errors, including preventing Diamond Offshore from showing the jury surveillance video its investigator had taken of Williams working outside.

Diamond Offshore's semi-submersible rig, the OCEAN LEXINGTON, upon which Willie David Williams was injured.

Diamond Offshore’s semi-submersible rig, the OCEAN LEXINGTON, upon which Willie David Williams was injured.

The surveillance video was eighty-minutes long and showed Williams performing various outdoor tasks, such as using an excavator to haul debris and working on a vehicle, over the course of three days, years after the accident and after Williams’ back surgeries.  The trial judge ruled the video could not be used as substantive evidence, but only for impeachment purposes, in other words, to try to show Williams was lying if he denied doing any of the things the video showed him doing.  Williams’ lawyers argued the video should be excluded from the trial under evidence rule 403 because the prejudicial effect of what they termed the “heavily edited” video substantially outweighed any probative value.

The appeals court found significant the fact the “video only reflects Williams’s outside activities and does not reflect what he did when he was not outside or whether he was in pain as a result of his activities.”  Also, in his trial testimony, Williams admitted he could perform the activities depicted in the surveillance video, although he added he could only engage in these activities “for short periods of time before he felt pain and that he would be in pain later after engaging in these activities.”

In affirming the trial judge’s decision to not allow the jury to see the surveillance video, the appeals court discussed how a “trial court’s evidentiary rulings are committed to the court’s ‘sound discretion,’ and we must uphold the court’s ruling if there is any basis for doing so.”  While in the trial transcript, the trial judge did not articulate a reason for its rulings, instead merely saying during a pre-trial hearing that Diamond Offshore could “keep [the surveillance video] in your reserve bank for impeachment” and that, if Williams “opens the door, then we’ll take a look at it.”  Similarly, when Diamond Offshore offered the surveillance video after one of Williams’ medical experts testified, the court stated, “Ruling stands the same,” and when Diamond Offshore offered the video after cross-examination of Williams, the trial court stated, “No, not admitting,” without providing a reason.

The appellate court found that “[n]o Texas case squarely addresses the issue present here—the admissibility of post-accident surveillance videotapes as either substantive or impeachment evidence—and cases from other jurisdictions have emphasized the trial court’s discretion in ruling on the admissibility of such evidence, upholding trial courts’ rulings admitting post-accident surveillance videos and upholding rulings excluding this evidence.  In the absence of authority binding on this Court, we cannot conclude that the trial court abused its discretion in excluding the post-accident surveillance video offered by Diamond Offshore. The trial court could have reasonably determined that the proffered video, which contained clips from three different days of surveillance edited together into one continuous hour-long video and depicted Williams performing activities that he admitted that he could do, albeit with pain later, created an impression that Williams could engage in physical activity for long periods of time without needing rest and without apparent pain and thus that the prejudicial effect of the video outweighed the video’s probative value. …  We therefore hold that the trial court did not abuse its discretion in excluding the surveillance video proffered by Diamond Offshore.”

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings lawsuits for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, and we regularly face situations where the defendant, usually our client’s employer, has hired an investigator to secretly shoot surveillance video of our client.  This decision highlights how those videos can often be unfair in what they don’t show about how an accident has injured our client.  If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

Court Invokes Flotilla Doctrine, Orders Vessel Owner to Increase Security in Limitation Act Case to Include Value of 2d Tug Involved in Accident

The federal case of Crosby Marine Transp., LLC v. Triton Diving Servs., LLC, CIV. 13-2399, 2014 WL 5026070 (W.D. La. Oct. 8, 2014) arises out of accident which occurred in May 2013, in which a tug, the M/V CROSBY MARINER, and another Crosby Marine Transportation-owned tug, the M/V CROSBY EXPRESS, were moving a barge in Bayou Chene near Amelia, Louisiana. The CROSBY EXPRESS was the lead tug that was towing the barge, while the CROSBY MARINER had the barge on its hip to stabilize the barge during transit.  Both tugs were manned by captains, but all passing arrangements and decisions about the speed of the tow and navigation came from the captain of the lead tug, the CROSBY EXPRESS.

Mark Rottinghaus, a Crosby Tugs, L.L.C. employee and crewman aboard the M/V CROSBY MARINER, was injured when the M/V TRITON ACHIEVER, a vessel owned and operated by another company, collided with the CROSBY MARINER.

Crosby Marine Transportation, L.L.C., as owner of the M/V CROSBY MARINER, and Crosby Tugs, L.L.C., as owner pro hac vice of the M/V CROSBY MARINER, filed a Verified Complaint for Exoneration from or Limitation of Liability, pursuant to Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims and the Vessel Owners’ Limitation of Liability Act, seeking to be exonerated or alternatively to limit its liability to the value of the tug, with pending freight, upon which Rottinghaus was serving.  Simultaneously with the filing of its complaint, Crosby filed an Ad Interim Stipulation and posted security only in the amount of its interest in the M/V CROSBY MARINER and pending freight together with interest at the rate of 6% per annum from the date of the stipulation and for costs.

Rottinghaus then filed a motion under Supplemental Rule F(7) asking the federal judge to order Crosby to increase its filed security to include the value of the other Crosby tug, the CROSBY EXPRESS.  Rottinghaus cited the “Flotilla Doctrine.”  Under this Doctrine,  where vessels involved in a casualty are (i) commonly-owned, (ii) engaged in a common enterprise, and (iii) under a single command, the court may order that all vessels in the flotilla, or their value, together with pending freight, be tendered to the court as security for claimants when the vessel owner files for court protection under the federal Vessel Owners’ Limitation of Liability Act.

Rule F(7), entitled “Insufficiency of Fund or Security,” states:

“Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff’s interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff’s interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced.”

The purpose of Rule F(7), the Court found, “is to ensure that the plaintiff-in-limitation is not permitted to submit an inadequate bond with impunity and that the claimant may not contend that the bond should be higher than the actual value of the vessel.”

The Court agreed with Rottinghaus and granted his motion under Rule F(7) to increase security.  It ordered that a court-appointed expert appraise the value of both the second tug, the M/V CROSBY EXPRESS, along with the CROSBY MARINER, or, alternatively, that the parties file a stipulation — or written agreement, as to the value of both tugs along with their pending freight, as the Limitation Act and Rule F require.

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, and passengers aboard cruise and excursion boats and ships.  If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the Vessel Owners’ Limitation of Liability Act, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is http://www.golawllc.com.  We practice primarily in PA, WV, and OH, but also all over the inland waterways.

Jury Properly Instructed “Assumption of the Risk” is No Defense, When Employer Injects Such Evidence and Argument Into Case

Union Pacific R. Co. v. Estate of Gutierrez, 2014 WL 4109586 (Tex.App. — Houston [1st Dist.] August 21, 2014), is a Federal Employers Liability Act (or “FELA”) case.  But, the Jones Act, applicable to a seaman’s negligence action against his employer for personal injury or death, expressly incorporates the FELA by reference, so court decisions under the FELA are highly persuasive in Jones Act cases, and vice versa.

UPIn this case, although the Court found Congress had amended the FELA in 1939 to abolish the assumption of the risk defense in actions brought under this statute, the Court agreed with plaintiff’s counsel that the railroad’s lawyer had repeatedly placed before the jury argument and evidence implying the deceased rail worker had a choice in many aspects of his job, and essentially that the worker could have through his choices avoided his own accident.  Under these circumstances, the appeals court agreed with the trial judge that it was necessary to instruct the jury before it retired to reach its verdict that the assumption of the risk defense was not available to the railroad defendant, in order to ensure the jury had a proper understanding of applicable law.

The appeals court summarized the deceased worker’s estate’s position on appeal as follows:

“Appellees, however, argue that appellant injected the issue of assumption of the risk by repeatedly telling the jury that Gutierrez had chosen to work the job on which he was injured, in the location where he was injured, and under the conditions existing at the time, despite there being no requirement for him to do so because his seniority allowed him to choose a different job. In support of their position, appellees point to several exchanges in voir dire during which appellant’s counsel asked venire members how they responded to unsafe working conditions in their job, suggesting that stopping work in such conditions was ‘good sense’ and assuming ‘personal responsibility.’ In opening statements, appellant’s counsel referred several times to Gutierrez’s seniority, that it allowed him to bid on any job he wanted, and that he picked the RIP track because that was his preferred location. Appellees also point to co-workers’ testimony elicited by [the railroad] that Gutierrez chose to work the job on which he was injured, despite seniority that allowed him to choose any position. Appellees argue that given these examples, and the fact that appellant claimed that Gutierrez had been contributorily negligent in causing his injury, an instruction that assumption of the risk is not a defense was warranted.”

The appeals court, in agreeing that the curative instruction to the jury on the non-applicability of the assumption of the risk defense was warranted, wrote:

“[A] trial court may instruct a jury that assumption of the risk is not a defense if there are ‘facts strongly suggesting assumption of the risk…..Here, appellant’s counsel reminded the jury numerous times—in voir dire, in opening statements, and through witness testimony—of the fact that Gutierrez’s seniority allowed him to choose any job he wanted but that he had chosen the job and location where he worked….Further, we note that a defendant’s intentions in presenting such evidence is not the proper focus; rather, it is the potential impact on the jury that governs whether an instruction is given….”

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, passengers aboard cruise and excursion boats and ships, and railroad workers covered by the FELA. If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the FELA, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340. Our website is http://www.golawllc.com.  Our e-mail address is info@golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

Port Engineer Who Worked Mostly on Stationary Vessels Entitled to Jury Trial on Seaman Status

In Haas v. Beatty Street Properties, Inc., 2014 WL 2932258 (S.D. Tex. June 27, 2014), Timothy Haas worked as an assistant port engineer for Beatty Street Properties, Inc. (“BSP”). His job was to maintain the mechanical systems on BSP’s boats.  He spent about 90% of his working hours on the boats, which were docked about 60% of the time. But, about 40% of the time, the boats were moving, often carrying pilots to ships.  One day, while working on a docked boat, Haas claimed he injured his lower back while handling a water pump.

BSP asked the court to dismiss his Jones Act case, arguing Haas couldn’t possibly be a seaman.  The court refused Haas’ employer’s motion, citing the Fifth Circuit’s 2014 decision in Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014).  Judge Costa found that the appeals court in Naquin had held that “an employee who performed nearly all of his work on docked vessels was a seaman.”  Accordingly, the court ruled Haas was entitled to a jury trial on whether he qualified as a seaman under the Jones Act.

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships. If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 (toll-free), 412-281-4340, or via e-mail at info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

Towboat Company’s One-Sided Review of, and Delay in Paying, Seaman’s Maintenance and Cure Claim Draws $300,000 Punitive Damages Judgment

In Stermer v. Archer-Daniels-Midland Co., 2014 WL 25153872014 (La. App. 3d Cir.  June 4, 2014), American River Transportation Company (ARTCO) employed Adrienne Stermer as a cook on its towboat.  About two weeks into her hitch, while the towboat was facing up to its tow and Stermer was in the galley, kneeling before an open refrigerator, cleaning a steak sauce tray, the vessel’s movements caused her to lose her balance and fall forward.  Apparently no one warned her to “watch the bump.”  Stermer tried to steady herself by grabbing a shelf inside the refrigerator, but her fingers went through the rack and her right hand was pushed backward.  Her knees hit the floor.  She tried to use her left hand to brace herself for the fall, but instead rolled onto her right ankle.  Nevertheless, she got herself up, brushed herself off, and returned to work.  While she had pain and swelling in her hands and right ankle, she just took Advil.  Stermer testified she was afraid to report her accident for fear of being fired.  But, five days later, when her hands and right ankle continued to swell and she could no longer tie her shoes, Stermer reported her injuries to the boat’s engineer, who informed the pilot.  Stermer then completed an ARTCO accident report.

Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

Three days later, ARTCO put Stermer ashore in Paducah, Kentucky, and to a hospital there.  The history of her injuries that Stermer gave to medical personnel at Western Baptist Hospital was consistent with what she had told the engineer and what she had written in her accident report.  The ER physician diagnosed bilateral hand and wrist sprains and a right ankle sprain, and prescribed antiinflammatories, pain medication, and an air cast for Stermer’s right ankle.  She then returned to her towboat, tried to work, but was relieved, and sent home to Louisiana.

Later, the vessel’s captain and a deckhand testified they were in the galley when Stermer claimed to have been hurt, that there were two bumps during the facing-up, but they did not see her fall into the refrigerator.  Just five days after Stermer reported her accident, ARTCO sent Stermer a letter asserting her “recent complaints did not manifest itself [sic] in the service of the vessel” and that it would not pay her maintenance and cure.  Three days later, ARTCO sent Stermer another letter, this time to fire her.  It wrote her “willful disregard for the truth … demonstrated an unacceptable standard of conduct.”

A hand surgery specialist in Louisiana continued to treat Stermer, at first conservatively, but then with surgery, to repair a scapholunate dissociation.  This is a tear in the ligament between the scaphoid and lunate bones in the wrist.  This surgeon found Stermer’s injury was not preexisting.  ARTCO obtained an “IME,” or “independent medical opinion,” from an orthopedic surgeon who opined the injury was present before the accident aboard the towboat.  ARTCO, despite being kept continuously apprised of Stermer’s medical course, and despite Stermer’s demands for maintenance and cure, including a request to pay for her surgery, refused to pay maintenance and cure for two and a half years.  It delayed approving the surgery for 27 months, even though its IME physician agreed Stermer needed the surgery.

Stermer brought claims in state court against ARTCO for negligence under the Jones Act and, under the general maritime law, for unseaworthiness, maintenance and cure, and retaliatory discharge.  At trial, the judge awarded Stermer on her Jones Act negligence claim nearly $100,000 for lost employee benefits, $337,000 in lost wages, and $200,000 for pain and suffering.  The court also found ARTCO’s refusal to pay Stermer maintenance and cure for two and a half years “arbitrary and capricious” and assessed an additional $300,000 in punitive damages and $150,000 in attorney’s fees.  The court found she had not proved her unseaworthiness and retaliatory discharge claims.

ARTCO appealed only the punitive damages and attorney’s fee aspects of the trial court’s judgment.  The Louisiana appellate court described the seaman’s maintenance and cure claim under the general maritime law, the deferential standard under which it is to be judged, and the consequences maritime employers face when they callously disregard their maintenance and cure obligation.

The appeals court in its opinion wrote how maintenance and cure “is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship” and how “[r]ecovery is not dependent upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light.”  To win a maintenance and cure claim, “a seaman need only prove that the injury arose during his service of the vessel” and the seaman does not even have to prove his or her duties caused the injury.

Continuing, the appeals court noted that while an employer is entitled to investigate a seaman’s claim for maintenance and cure, to rely on recognized defenses to deny benefits when appropriate, and to require corroboration of the claim, the employer cannot be “lax” in its investigation.  Further, the court wrote, “when an employer’s investigation of a seaman’s claim reveals that doubts or ambiguities exist as to whether the seaman is entitled to maintenance and cure, they are resolved in favor of the seaman.”  “If an employer fails to properly investigate a claim for maintenance and cure or unreasonably rejects a claim after investigating the claim, the employer may be liable for compensatory damages that are a consequence of the failure to pay maintenance and cure. … The employer may also be liable for punitive damages and attorney fees if it is ‘more egregiously at fault’ in denying a proper claim for maintenance and cure. … This higher degree of fault has been explained as ‘callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent.’ … An employer’s failure or refusal to consider the medical evidence of an injury or illness submitted by a seaman in support of his claim for maintenance and cure is grounds for concluding the employer’s failure to institute maintenance and cure is arbitrary and willful.”

The appellate court affirmed the trial court’s $300,000 punitive damages award for willful failure to timely pay maintenance and cure, but sent the case back to the trial court to develop further evidence on the lower court’s attorney’s fee award.  It found ARTCO “considered only evidence that indicated the incident Ms. Stermer reported did not occur before denying her claim for maintenance and cure,” yet disregarded seven key facts that supported the validity of Stermer’s maintenance and cure claim.  The appeals court held: “The totality of the evidence leads to the conclusion that once ARTCO had evidence that no accident occurred, it did not consider evidence corroborating Ms. Stermer’s claim that she was injured October 9.  Under these facts, we find that ARTCO’s investigation of Ms. Stermer’s claim was neither diligent nor reasonable and, therefore, find no manifest error in the trial court’s conclusion that ARTCO was arbitrary and capricious in denying Ms. Stermer’s claim.”  The appeals court also tacked-onto the judgment $10,000 for Stermer’s attorney’s fees on appeal.

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships.  If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.